Chapter 8: CITIZENSHIP

• The population of a State is divided into two cJasses - citizens and aliens. While citizens enjoy full civil and political Citizenship rights, aliens do not enjoy all of them. Citizens are members of the political community to which they belong. They are the people who compose the State.




• The question of citizenship became particularly important at the time of the making of our Constitution because the Constitution sought to confer certain rights and privileges upon those who were entitled to Indian Citizenship while they were to be denied to 'aliens'. The latter were even placed under certain disabilities.




• Thus, citizens of India have the following rights under the Constitution which aliens shall not have:




1. Some of the Fundamental Rights belong to citizens alone, such as.-Arts. 15, 16, 19.




2. Only citizens are eligible for certain offices such as those of the President, Vice-President, Judge of the Supreme Court or of a High Court; Attorney-General; Governor of a State ; Advocate-General [Art. 165].




3. The right of suffrage for election to the House of the People (of the Union) and the Legislative Assembly of every State [Art. 326] and the right to become a member of Parliament and of the Legislature of a State are also confined to citizens.




4. All the above rights are denied to aliens whether they are 'friendly' or 'enemy aliens'. But 'enemy aliens' suffer from a special disability; they are not entitled to the benefit of the procedural provisions in Art. 22 relating to arrest and detention. An alien enemy includes not only subjects of a State at war with India but also Indian citizens who voluntarily reside in or trade with such a State.




5. The Constitution, however, did not intend to lay down a permanent or comprehensive law relating to citizenship in India. It Simply described the classes of persons who would be deemed to be the statutory basis of citizens of India at the date of the commencement of the Citizenship in Constitution and left the entire law of citizenship to be India regulated by some future law made by Parliament.




6. Parliament has enacted the Citizenship Act making elaborate provisions for the acquisition and termination of citizenship subsequent to the commencement of the Constitution the provisions of this Act are to be read with the provisions of Part II of the Constitution, in order to get a complete picture of the law of Indian citizenship.




7. In view of the fact that the Act of Parliament only deals with the modes of acquisition of citizenship subsequen: to the commencement of the Constitution, It would be convenient to deal with them separately.

• A person born as well as domiciled in the 'territory of India'-irrespective of the nationality of his parents




• A person domiciled in the 'territory of India', either of whose parents was born in the territory of India,-lrrespective of the nationality of his parents or the place of birth of such person




• A person who or whose father or mother was not born in India, but who (a) had his domicile- in the 'territory of India" and (b) had been ordinarily residing within the territory of India for not less than 5 years immediately preceding the commencement of the Constitution. In this case also, the nationality of the person's parents is immaterial. Thus, a subject of a Portuguese Settlement, residing in India for not less than 5 years imnmediately preceding the commencement of the Constitution, with the intention of permanently residing in India, would become a citizen of India at the commencement of the Constitution




• A person who had migrated from Pakistan, provided




1. He or either of his parents or grand-parents was born in 'India as defined in the Government of India Act, 1935




2. if he had migrated before July 19, 1948 - he has ordinarily resided within the "territory of India" since the date of such migration (in his case no registration of the immigrant is necessary for citizenship); or




3. if he had migrated on or after July 19, 1948, he further makes an applicaion before the commencement of this Constitution for registering himself as a citizen of India to an officer appointed by the Government of India, and is registered by that officer, being satisfied that the applicant has resided in the territory of India for at least 6 months before such application.




• A person who migrated from India to Pakistan after the 1st March, 1947, but had subsequently returned to India under a permit issued under the authority of the Government of India for resettlement or permanent return or under the authority of any Law provided he gets himself registered in the same manner




• A person who, or any of whose parents or grand-parents was born in 'India' as defined in the Government of India Act, 1935 (as Originally enacted) but who is ordinarily residing in any country outside India (whether befor« or after the commencement of this Constitution), on application in the prescribed form, to the consular or diplomatic representative of India in the country of his residence [Art. 8]. (Provision was thus made for Indians living In foreign countries at the date of commencement of the Constitution.)

• So far as employments under the Union are concerned, there shall be no qualification for residence within any particular territory, but by Article 16(3) of the Constitution, Parliament is empowered to lay down that as regards any particular class or classes of employment under a State or a Union Territory residence within that State or Territory shall be a necessary qualiflcation.




• This exception in the case of State employments has been engrafted for the sake of efficiency, insofar as it depends on familiarity with local conditions.




• It is to be noted that it is Parliament which would be the sole authority to legislate in this matter and that State Legislatures shall have no voice. To this extent, invidious discrimination in different States is sought to be avoided.




• Parliament, in the exercise of this power, enacted the Public Employment (Requirement as to Residence) Act, 1957, for a temporary duration. By this Act, Parliament empowered the Central Government to make rules, having force for a specified period, prescribing a residential requirement only for appointment to non-Gazetted posts in Andhra Pradesh, Himachal Pradesh, Manipur and Tripura,




• Since the expiry of this Act in 1974, nobody can be denied employment in any State on the ground of his being a non-resident In that State.'




• As will be seen in the Chapter on Fundamental Rights, Art. 15(1), which prohibits discrimination on grounds only of race, religion, caste, sex or place of birth, does not mention residence.




• It is, therefore, constitutionally permissible for a State to confer special benefits upon its residents in matters other than those in respect of which rights are conferred by the Constitution upon all citizens of India.




• One of these, for instance, is the matter of levying fees for admission to State educational institutions. The Supreme Court has held that because discrimination on the ground of residence is not prohibited by Article 15, it is permissible for a State to offer a concession to its residents in the matter of fees for admission to its State Medical eollege.




• So far as the State of Jammu and Kashmir is concerned, the Legislature of the State is authorised'' to confer special rights and privileges upon persons permanently resident in the State as respects-




1. employment under the State Government.




2. acquisition of immovable property in the State;




3. settlement in the State;




4. right to scholarships and such other forms of aid as the State Government may provide.

Introduction

The citizens of India enjoy rights and privileges that aliens [outsiders with no membership but here legally]. Friendly aliens enjoy some additional privileges than enemy aliens [country India is at war with].

Fundamental rights to citizens and aliens

The following rights are not enjoyed by aliens:

        1-      Right against discrimination on any grounds

        2-      equality of opportunity in public service

        3-      Right to freedom of expression, association, movement, profession, residence, assembly.

        4-      right to vote

        5-      right to contest for elections of MP , MLA

        6-      Right to hold office of president, vice president, judges of SC / HC, attorney general or advocate general and governor.

Along with rights, fundamental duties are also applicable to Indian citizens only. In India office of president is available to citizen by birth or naturalization unlike USA [only birth].

Constitutional provisions for citizenship 

Constitution makes provision of people who became citizen on January 26, 1950. It empowers parliament to handle all matters related to citizenship. Under this, parliament has passed the citizenship act which states five ways of acquiring citizenship:

1-      By birth – a person born in India after 26 January 1950 and before 1 July 1987 is a citizen irrespective of the nationality of his parents. Those born after or on 1 July 1987 are citizens only if either parent is a citizen at the time of his birth. Those born on and after 3^rd December 2004 are citizens if both parents are citizens or if one are citizen and other isn’t illegal immigrant.

2-      By descent: A person born out of India after 26 January 1950 but before 10 December 1992 is a citizen by descent if his father was a citizen at the time of his birth. A person born out of India after 10 dec 1992 is a citizen if either of his parent is an Indian citizen. A person born out of India after 3 December 2004, is a citizen if his birth is registered at the Indian consulate within 1 year of his birth, this has to be accompanied with an undertaking from parents that she doesn’t hold any other citizenship.

3-      By registration: Central government can register a person as citizen if he has been resident of India for at least 7 years. He has minor children who are citizens of India. He has parents either of who are citizens of India. Who is married to a citizen of India.

4-      By naturalization: Central government can grant on application a certificate of naturalization to a person who is not a citizen of a country where Indians can’t be naturalized citizens.

1. Is ready to surrender citizenship of other country when he receives Indian citizenship.
   
2. Is of good character. Has knowledge of at least one language of 8^th schedule.
   
3. He has been a resident of India or been in service to Govt of India for a period of 12 months preceding application.
   
4. He has been a resident of India or in service to Govt of India during 14 yrs preceding the said period of 12 months.
   
5. He shall on grant of naturalization continue to reside in India or serve under Govt of India or society, trust, company run by Indian.
   
6. Govt of India can waive of all conditions for a person with distinguished record in field of science, human progress, peace, philosophy, art, literature. Every naturalized citizen must take oath of allegiance to the constitution.

5-      By incorporation of territory: If a foreign territory becomes part of India then the Govt of India can specify who amongst the people of that territory can become citizens of India.

Loss of Citizenship

1. By renunciation: When a person makes a declaration renouncing citizenship, upon registration of that declaration by Govt of India his citizenship is null and void. Also all minor children of that person also lose their citizenship. Such minor can resume citizenship after 18 years of age.
2. By termination: If a citizen acquires voluntarily the citizenship of another country then he loses his Indian citizenship automatically.
3. By deprivation: Govt of India can cancel citizenship if its obtained by fraud, citizen communicates with enemy during war, he is not resident in India for 7 years, he has within 5 years of registration or naturalization been in jail for 2 years, he has shown disloyalty to the constitution.

Single Citizenship

Single citizenship for all citizens is provision made in our constitution unlike USA, Switzerland but same as Canada. This is to prevent discrimination and promote equality and fraternity. Also to build a united and integrated nation.

Exceptions to this rule:

1. Govt of India can prescribe residence of state or UT for employment in public service for that state or UT.
2. Constitution doesn’t prohibit discrimination on grounds of residence hence states or UT can give preference or concessions to its residents.
3. Freedom of residence can be curtailed to protect rights of ST.
4. The state of J&K can give special rights to its residents in matters of employment, acquisition of immovable property, settlement and scholarships.

News:

PIO and OCI to be merged into overseas Indian card holder’s scheme.

Pravasi Bharitya Divas

Pravasi kaushal vikas yojana shall be launched soon. The aim of this is enhancing skills of various persons travelling abroad for employment opportunities. This scheme shall ensure that they get better economic opportunities.

VAJRA [Visiting Adjunct Joint Research Faculty] scheme to enable Indian scientific community abroad to participate in research and development in India by working in an institution in India for 3-4 months.

Investments made by PIO’s and Company’s or trusts owned by them shall be deemed to be on par with investments made by resident indians.

Quiz

Score more than 80% marks and move ahead else stay back and read again!